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Six 'Ifs' Stand Between AHCA and Successful Passage

Larossi Abballa in a video released June 14, 2015, by ISIS. (Islamic State's Amaq News Agency via AP)

At last, it’s the U.S. Senate’s turn to bury its arms up to its elbows in the tortured legislative sausage branded the American Health Care Act (AHCA).

House Speaker Paul Ryan’s (R-WI) Braveheart speech worked, minutes before the House of Representatives passed AHCA 217–213 on May 4. President Donald Trump celebrated the bill’s passage in the White House Rose Garden with Vice President Mike Pence, who may soon cast a tie-breaking vote on the bill in the Senate.

Does any of it matter?

That depends on several important “ifs” embedded in AHCA by its principal sausage-makers.

AHCA’s effectiveness now hinges on at least six key unknowns: (1) Senate markup, (2) Senate approval, (3) House approval of Senate amendments, (4) state willpower to obtain waiver exemptions to Obamacare mandates, (5) Health and Human Services (HHS) Secretary Tom Price’s pen, and (6) congressional follow-through on other promised reforms.

Twisting the sausage too far to the right or left at any of these junctures will cause AHCA to fall apart. In some scenarios, the bill’s casing would remain intact, but its meat would disintegrate.

Senate Markup

In the home stretch of passing AHCA off to the Senate like a hot potato, House Republicans reminded reluctant centrist Republicans that the Senate will surely mark up the bill. Consequently, the argument went, centrists need not worry that the House version would let states opt out of Obamacare price controls: Give the Senate a chance to ruin the option, the argument went, and maybe the Senate will do just that. (The Senate could even pass its own bill, written from scratch.)

Senate Approval

Two Senate Republican “no” votes on AHCA would let Pence break a 50–50 tie. Three “no” votes would kill AHCA. On May 2, Axios reporter Caitlin Owens charted a path forward for AHCA in the Senate. Juniper Research Group CEO Chris Jacobs disputed it on Twitter:

Hyde language on tax credits likely Byrdable, meaning credits DOA in Senate. … No way a tax credit w/o Hyde protections passes Senate. Life groups would key vote NO on bill, and conservatives would bail in droves.

In other words, the House’s pro-life protections in AHCA could break certain Senate rules (explained next), leading to a dead bill. Owens’ reply says it all:

Fair! We’ll see what happens.

House Approval, Again

Passing AHCA is phase one of Ryan’s health care reform plan — the phase to be passed under budget reconciliation rules, which are exempt from the Senate filibuster. Ryan argued in early March the Senate parliamentarian would reject a repeal of certain Obamacare mandates (explained next). By late March, that was debunked. Whether the newly added MacArthur and Upton amendments — keys to gaining House approval — will pass parliamentary muster remains to be seen. If not, the House could reject the Senate version.

State Waivers

About those mandates: Obamacare’s essential health benefits (EHBs) mandate requires insurance plans to cover some services many people have practically zero chance of using. ACA’s community rating mandate prohibits insurers from charging healthy individuals lower premiums even though they file fewer claims. The MacArthur amendment would let states apply for waivers exempting them from Obamacare’s EHB and community rating mandates. Jacobs recently told The Heartland Institute’s Health Care News:

Based on everything I’ve seen and heard, I don’t think many states will take up the waiver option.

As the silly season (i.e., campaigning for reelection) approaches, state officials may demur.

HHS Secretary Price

“What executive action giveth, executive action taketh away,” as Josh Blackman, associate professor at South Texas College of Law-Houston, likes to say. Obamacare gave HHS unprecedented regulatory powers. Phase two of Ryan’s plan is for Price to use these against ACA.

Congressional Regular Order

Phase three of Ryan’s plan is essentially to pass additional market-based reforms granting patients more control over their health care dollars and decisions. Because these reforms would require 60 votes to survive a Senate filibuster, this horse looks an awful lot like a unicorn.

AHCA is a slippery sausage. Squeezing any of these six ingredients too much or little will leave Americans empty-handed or with a hollow casing.

Truly patient-centered, free-market reforms would be more appetizing. For starters, Congress could cease steering tax dollars, patients, and providers toward insurance as the basis of health care reform. But we wouldn’t want Congress to ruin its appetite.